david m.louie 2162 attorney general ofhawai’i deirdre marie-iha 7923 marissa … ·...

DAVID M.LOUIE 2162Attorney General of Hawai’i

DEIRDRE MARIE-IHA 7923MARISSA H. I. LUNING 9025Deputy Solicitors GeneralDepartment of the Attorney General425 Queen StreetHonolulu, Hawai’i 96813Tel. (808) 586-1360Fax (808) 586-1237

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

DEMOCRATIC PARTY OF HAWAII, CIVIL NO. CV13-00301 JMS/KSC

Plaintiff, DEFENDANT SCOTT NAGO’SCOUNTER-MOTION FOR

V5. SUMMARY JUDGMENT;MEMORANDUM OF LAW IN

SCOTT T. NAGO, in his official OPPOSITION TO PLAINTIFF’Scapacity as Chief Election Officer of the MOTIONS FOR PRELIMINARYState of Hawaii, INJUNCTION AND PARTIAL

SUMMARY JUDGMENT AND INDefendant. SUPPORT OF DEFENDANT’S

COUNTER-MOTION FORSUMMARY JUDGMENT;CERTIFICATE OF COMPLIANCE;CERTIFICATE OF SERVICE

HEARING DATE: 10/7/13TIME: 9:00A.M.

JUDGE: Hon. J. MichaelSeabright

517074 1.DOC Civil No. CV13-00301 JM5/KSC

Case 1:13-cv-00301-JMS-KSC Document 15 Filed 09/16/13 of 3 PageID #: 107

DEFENDANT SCOTT NAGO’SCOUNTER-MOTION FOR SUMMARY JUDGMENT

Scott Nago, Chief Election Officer of the State of Hawaii, Defendant,

counter-moves for summary judgment. There are no genuine issues of material

fact. The Democratic Party of Hawaii, Plaintiff, has failed to carry their burden to

demonstrate that Hawaii’s open primary is unconstitutional under the First

Amendment. As outlined in the attached memorandum, the Party’s facial

challenge fails under United States v. Salerno, 481 U.S. 739 (1987), and it offers

no facts on which as as-applied challenge could be based. Furthermore, the Party

fails to demonstrate that their associational rights are severely burdened by the

open primary, and the State’s interests in the open primary meet the relevant

standard of scrutiny in any event. The open primary is constitutional.

This motion is filed as a counter-motion under Local Rule 7.9. Because the

Party simultaneously moved for a preliminary injunction and for partial summary

judgment, the attached memorandum of law serves as an opposition to both of

Plaintiffs motions, and as a memorandum in support of Defendant’s counter-

motion for summary judgment.

This counter-motion is made under Fed. R. Civ. P. 56, Local Rules 7.9 and

56.1, and is based on the attached declarations, memorandum of law, separate

1Civil No. CVI3-00301 JMS/KSC


concise statement, and the documents previously filed with this Court.

DATED: Honolulu, Hawaii, September 16, 2013.

Respectfully submitted,

Is! Deirdre Marie-IhaDeirdre Marie-IhaMarissa H. I. Luning

Deputy Attorneys GeneralAttorneys for Defendant

2Civil No. CV13-00301 JMS/KSC





Plaintiff,

vs.

SCOTT T. NAGO, in his officialcapacity as Chief Election Officer of theState of Hawaii,

Defendant.

MEMORANDUM OF LAW IN OPPOSITION TOPLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION

AND PARTIAL SUMMARY JUDGMENTAND IN SUPPORT OF DEFENDANT’S COUNTER-MOTION

FOR SUMMARY JUDGMENT

Case 1:13-cv-00301-JMS-KSC Document 15-1 Filed 09/16/13 Page 1 of 42 PageID #: 110

TABLE OF CONTENTS

INTRODUCTION. 1

STANDARDS FOR SUMMARY JUDGMENT ANDPRELIMINARY INJUNCTIVE RELIEF 2

ARGUMENT 3

A. This Court Should Exercise Great CautionBefore Striking Down State Election Laws 3

B. The Party’s Facial Challenge Fails Under Salerno andIts As-Applied Challenge Fails Because the Party ProvidesNo Factual Support 6

1. The Party’s Facial Challenge Fails Under Salerno 6

2. The Party Makes No As-Applied Challenge and Even IfIt Had, An As-Applied Challenge Would Fail Because ItRelies on Assumptions Alone and Lacks Any TrueFactual Support 9

C. The Party Fails to Demonstrate that Its Associational RightsAre Severely Burdened Because Primary Voters Do Affiliatewith the Party 12

D. The State’s Interests in the Open PrimaryOutweigh the Party’s Associational Rights 21

1. The Open Primary Enhances the Democratic ProcessBy Removing Barriers to Voter Participation 22

2. The Privacy Afforded by the Open Primary Preserves theIntegrity of the Democratic Process By Protecting Votersfrom Coercion 23

3. The Open Primary Supports a Vibrant Multi-PartySystem 25

E. The Party Cannot Meet the Other Three Prongs for Preliminaryor Permanent Injunctive Relief 28

i Civil No. CV13-00301 JMS/KSC


F. Even if This Court Strikes Down the Open Primary,Restructuring the Election Laws is the Sole Prerogative of theHawaii State Legislature 29

CONCLUSION 34

Civil No. CVI3-00301 JMS/KSC


TABLE OF AUTHORITIES

CASES:

Arizona Libertarian Party v. Bayless,351 F.3d 1277 (9th Cir 2003) 8, 10

Austin v. Michigan Chamber of Commerce,494 U.S. 652 (1990) 28

Ayotte v. Planned Parenthood of N. New England,546 U.S. 320 (2006) 6

Buckley v. Valeo,414U.S.1(1976) 4

Burson v. Freeman,504 U.S. 191 (1992) 16, 21, 24-25

California Democratic Party v. Jones,530U.S. 567(2000) 1,8, 10, 12-16, 19-21,25,27,31

Chamness v. Bowen,722 F.3d 1110 (9th Cir. 2013) 31

Citizens United v. Fed. Election Comm’n,558 U.S. 310 (2010) 28

Clingman v. Beaver,544U.S. 581 (2005) 3,7, 10, 13-15, 18-20, 22, 26, 31

Democratic Party of the United States v. Wisconsin ex rel. La Follette,450 U.S. 107 (1981) 13, 14, 15

Eu v. San Francisco Cnty. Democratic Cent. Comm.,489 U.S. 214 (1989) 24, 26

Hale v. Dep~t. of Energy,806 F.2d 910 (9th Cir. 1986) 29

Lightfoot v. Eu,964 F.2d 865 (9th Cir. 1992) 22-23, 29, 32

jjj Civil No. CV13-00301 JMS/KSC


Miller v. Brown,503 F.3d 360 (4th Cir. 2007) 20

Oden v. Brittain,396 U.S. 1210 (1969) 5

Reynolds v. Sims,377 U.S. 533 (1964) 33

Tashjian v. Republican Party of Connecticut,479 U.S. 208 (1986) 11,27

Timmons v. Twin Cities Area New Party,520 U.S. 351 (1997) 3, 10, 16, 21, 26

United States v. Salerno,481 U.S. 739 (1987) 1,6,7

Wash. State Grange v. Wash. State Republican Party,552 U.S. 442 (2008) 7, 8

Wash. State Republican Party v. Wash. State Grange,676 F.3d 784 (9th Cir. 2012), cert. denied, 133 S.Ct. 110 (2012) 9, 10,31

Winter v. Natural Res. Def. Council,555 U.S. 7(2008) 2,28

Wise v. Lipscomb,437 U.S. 535 (1978) 33

CONSTITUTIONS, STATUTES, and LEGISLATION:

U.S. Const. Art. I § 4 4

First Amendment 1, 3, 9, 10

Fourteenth Amendment 3

Haw. Const. Art. I § 6 23

Haw. Const. Art. II § 4 passim

Haw. Const. Art. II § 8 30,31,34

iv Civil No. CVI3-00301 JMS/KSC


Haw. Const. Art. XVII § 3 .30

Haw. Rev. Stat. § 11-11 33

Haw. Rev. Stat. § 11-15 32

Haw. Rev. Stat. § 11-204 28

Haw. Rev. Stat. § 11-363 28

Haw. Rev. Stat. § 12-1 17

Haw. Rev. Stat. § 12-3 1 5, 15, 16, 17, 30

Haw. Rev. Stat. § 14-21 17

1979 Haw. Sess. L. Act 139 5, 32

2010 Haw. Sess. L. Act 211 28

Proceedings of the Constitutional Convention ofHawai ‘i of 1978(1980) 22,24

OTHER STATES’ STATUTES:

Ala. Code 1975 § 17-13-7 5

Ga. Code Arm. 2 1-2-224 5

10 Ill. Comp. Stat. § 5/7-43 6

IowaCode~43.1 6

Minn. Stat. § 204D.08 5

Mo. Rev. Stat. § 111.397 5

N.D. Cent. Code § 16.1-11-22 5

Utah Code Ann. § 20A-2-107.5 6

Vt. Stat. Ann. tit. 17 § 2363 5-6

v Civil No. CVI3-00301 JMS/KSC


RULES:

Fed. R. Civ. P. 19 33

Fed. R. Civ. P. 56(a) 2

vi Civil No. CV13-00301 JMS/KSC


INTRODUCTION

This case is about Hawaii’s open primary system. There is one claim:

whether the open primary violates the Democratic Party of Hawaii’s freedom of

association under the First Amendment. The answer is no. As detailed below,

neither a facial nor an as-applied challenge can succeed here. The Party bears a

heavy burden as plaintiff. The Party fails to carry that burden: its facial challenge

necessarily fails under the rigorous standard from United States v. Salerno, 481

U.S. 739 (1987), and it offers no facts on which an as-applied challenge could be

premised. The Party’s motions should be denied for that reason alone.

Even if this Court reaches the as-applied challenge, the Party has failed to

demonstrate that the open primary places a severe burden on its associational

rights, because voters in an open primary do affiliate with the Party. ~

California Democratic Party v. Jones, 530 U.S. 567, 577 n.8 (2000) (“The act of

voting in the Democratic primary fairly can be described as an act of affiliation

with the Democratic Party.”) (internal quotation marks and citation omitted). And

regardless of whether that burden is judged to be severe or modest, the State’s

interests in supporting the democratic process, removing barriers to voting,

privacy, and supporting a vibrant multi-party system are sufficient to justify the

open primary and uphold its constitutionality.

1Civil No. CV 13-00301 JMS/KSC


Finally, even if this Court were to decide that the open primary is

unconstitutional, this Court’s role in this dispute would end with that ruling. The

Court should disregard the Party’s invitation to rewrite the Hawaii State

Constitution and the statutes governing the primary and voter registration.

Refashioning the primary, should it prove necessary, is the sole prerogative of the

Hawaii State Legislature.

The open primary is constitutional. This Court should grant Defendant’s

counter-motion for summary judgment, and deny both of the Party’s motions.

STANDARDS FOR SUMMARY JUDGMENTAND PRELIMINARY INJUNCTIVE RELIEF

The Party seeks a preliminary injunction and a partial summary judgment

order. “A plaintiff seeking a preliminary injunction must establish that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S.

7, 20 (2008). The same prongs govern the issuance of a permanent injunction,

except actual success on the merits is required. Id. at 32.

Summary judgment is granted when there is no genuine issue of material

fact and the movant demonstrates that they are entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a).



“When deciding whether a state election law violates First and Fourteenth

Amendment associational rights, we weigh the character and magnitude of the

burden the State’s rule imposes on those rights against the interests the State

contends justify that burden, and consider the extent to which the State’s concerns

make the burden necessary. Regulations imposing severe burdens on plaintiffs’

rights must be narrowly tailored and advance a compelling state interest. Lesser

burdens, however, trigger less exacting review, and a State ‘s important regulatory

interests’ will usually be enough to justify reasonable, nondiscriminatory

restrictions. . . . No litmus-paper test separates those restrictions that are valid from

those that are invidious. The rule is not self-executing and is no substitute for the

hard judgments that must be made.” Timmons v. Twin Cities Area New Party, 520

U.S. 351, 358-59 (1997) (emphasis added, citations and internal quotation marks

omitted).

ARGUMENT

A. This Court Should Exercise Great CautionBefore Striking Down State Election Laws

The State of Hawaii’s role in running the elections is a highly significant

one. The federal constitution acknowledges the States’ authority to regulate

elections. See Clingman v. Beaver, 544 U.S. 581, 586 (2005) (“The States have

“broad power to prescribe the ‘Times, Places and Manner of holding Elections for

Senators and Representatives,’ which power is matched by state control over the

3Civil No. CV 13-0030 1 JMS/KSC


election process for state offices.”) (quoting U.S. Const. Art. I § 4; other citations

omitted). And there is no question that operating the raw machinery of

democracy—the ballots, the polling places—is at the heart of the State’s authority

and privilege to support and sustain the democratic process. These interests are of

the highest order in this country: “the people are sovereign[.]” Buckley v. Valeo,

414 U.S. 1, 14 (1976). Because the Party’s challenge seeks to upend Hawaii’s

longstanding open primary system, the State’s interests lie in supporting the

democratic process.

The Party’s challenge to the open primary questions the constitutionality of

two provisions. First, the Hawaii State Constitution requires that the primary be

open:

The legislature shall provide for the registration of voters and for absenteevoting and shall prescribe the method of voting at all elections. Secrecy ofvoting shall be preserved; provided that no person shall be required todeclare a party preference or nonpartisanship as a condition of voting inany primary or special primary election. Secrecy of voting and choice ofpolitical party affiliation or nonpartisanship shall be preserved.

Haw. Const. Art. II § 4 (emphasis added). This provision governing the open

primary was added to the State Constitution in 1978.’ Id. Second, in 1979 the

1 Before this addition, the provision read: “The legislature shall provide for the

registration of voters and for absentee voting; and shall prescribe the method ofvoting at all elections. Secrecy of voting shall be preserved.” Haw. Const. Art. II§ 4 (1968).



Legislature implemented this requirement in statutory law. 1979 Haw. Sess. L.

Act 139 (Ex. D). The provision is unchanged since then:

No person eligible to vote in any primary or special primary election shall berequired to state a party preference or nonpartisanship as a condition ofvoting. Each voter shall be issued the primary or special primary ballot foreach party and the nonpartisan primary or special primary ballot. A votershall be entitled to vote only for candidates of one party or only fornonpartisan candidates. If the primary or special primary ballot is markedcontrary to this paragraph, the ballot shall not be counted.

In any primary or special primary election in the year 1979 and thereafter, avoter shall be entitled to select and to vote the ballot of any one party ornonpartisan, regardless of which ballot the voter voted in any precedingprimary or special primary election.

Hawaii Revised Statutes (HRS) § 12-31. The first open primary under this system

was in 1980. Nago Decl. Hawaii’s primary has been open ever since. Id.

Election laws are the true center of the State’s sovereignty and authority

over the democratic process. For that reason, this Court should exercise special

caution before striking down these laws. Oden v. Brittain, 396 U.S. 1210, 1211

(1969) (“Intervention by the federal courts in state elections has always been a

serious business.”) The Party’s challenge is necessarily limited to Hawaii’s open

primary. But there are many other States that have either open primaries or other

primary systems where fluid voter registration allows voters to move easily

between the primaries of different parties.2 This factor also cautions restraint.

2 See, e.g., Ala. Code 1975 § 17-13-7; Ga. Code Ann. 21-2-224; Minn. Stat. §204D.08 ; Mo. Rev. Stat. § 111.397; N.D. Cent. Code § 16.1-11-22; Vt. Stat. Ann.



Courts always act carefully when striking down laws as unconstitutional,

because these laws were enacted by democratically-elected representatives. See

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006) (“we

try not to nullify more of a legislature’s work than is necessary, for we know that a

ruling of unconstitutionality frustrates the intent of the elected representatives of

the people.”) (citation, brackets and internal quotation marks omitted). This is

never more true than here, where the laws challenged concern the operation of the

State’s elections, and the specific requirement challenged here was added as a

result of popular vote. Nago Deci. For all of these reasons, this Court should act

with special caution.

B. The Party’s Facial Challenge Fails Under Salerno and Its As-AppliedChallenge Fails Because the Party Provides No Factual Support

1. The Party’s Facial Challenge Fails Under Salerno

The Party specifically claims that the open primary is facially

unconstitutional. Doe. 4 at 3; Doc. 4-1 at 30. Claims of facial unconstitutionality

turn on the premise that the statute is always unconstitutional. Or, as articulated in

the controlling test: “the challenger must establish that no set of circumstances

exists under which the Act would be valid.” United States v. Salerno, 481 U.S.

tit. 17 § 2363 (all open primaries); 10 Iii. Comp. Stat. § 5/7-43 (public declarationof affiliation sufficient in order to vote, no formal party registration required); IowaCode § 43.1 (must be registered but can change party affiliation at any time,including the day of the primary); Utah Code Ann. § 20A-2-107.5 (unaffiliatedvoter may change party affiliation on election day).



739, 745 (1987) (emphasis added). This is the proper test for a facial challenge to

a primary law. See Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 449 (2008) (“a plaintiff can only succeed in a facial challenge by establishing

that no set of circumstances exists under which the Act would be valid, i.e., that the

law is unconstitutional in all of its applications.”) (internal quotation marks,

brackets and citation omitted) (quoting Salerno). The Party cannot sustain this

burden here.

The open primary is clearly constitutional as applied to any party that wants

to open its primary to all voters. This was the situation in Clingman v. Beaver, 544

U.S. 581(2005). The Libertarian Party of Oklahoma wanted to open its primary to

“all registered Oklahoma voters, without regard to their party affiliation.” Id. at

585. Because the Party must demonstrate here that “no set of circumstances

exists” under which the open primary would be valid, Salerno, 481 U.S. at 745,

their claim of facial unconstitutionality necessarily fails. It is easy to posit a

situation in which the open primary could be (and is) constitutionally applied; the

situation is already documented in the case law.

Furthermore, the Party’s facial challenge has the same flaw as the facial

challenge brought in Washington State Grange. In that case, the Supreme Court

took the challengers to task for attempting to overturn a state primary system as

facially unconstitutional based on nothing but speculation. “[T]hese cases involve



a facial challenge, and we cannot strike down 1-872 on its face based on the mere

possibility of voter confusion.” Washington State Grange, 552 U.S at 455

(emphasis added). “[W]e have no evidentiary record against which to assess their

assertions[.]” Id. The same is true here: the Party’s claim of facial

unconstitutionality is based on assumptions, not facts.3

For both of these reasons, the Party’s claim that the open primary is facially

unconstitutional is entirely mistaken. See Washington State Grange (overturning

grant of summary judgment in parties’ favor on facial challenge to “top two”

primary law). The Party’s facial challenge should be rejected on this ground alone.

The open primary is facially constitutional; Defendant’s motion should be granted.

~ For example, the Party speculates that voters from other parties may “raid” the

primary in order to vote for a perceived weaker candidate, who would then facetheir own party’s candidate in the general election. Doc. 1 at 13. Yet the Partyoffers no proof that such a practice actually occurs. See, e.g., Arizona LibertarianParty v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003) (observing that the SupremeCourt in Jones “treated the risk that nonparty members will skew either primaryresults or candidates’ positions as afactual issue, with the plaintiffs having theburden of establishing that risk[.]”) (emphasis added). The Party also assumes thatprimary voters who participate in the Democratic primary but are not Partymembers have political interests hostile to that of the Party. Doc. 4-1 at 15-16.Yet, given the political makeup of our State, isn’t it at least as likely (if not morelikely) that many (or even most) of those voters would identify themselvespolitically as Democrats even if they are not formal members? These are the sortof factual questions that the Party’s motion for summary judgment leavescompletely unanswered.



2. The Party Makes No As-Applied Challenge and Even IfIt Had, An As-Applied Challenge Would Fail Because It Relies on AssumptionsAlone and Lacks Any True Factual Support

The Party does not explicitly raise an as-applied challenge. The only places

where the distinction between a facial and an as-applied challenge appears is in the

Party’s motion and memo where it specifically states (in relation to the motion for

partial summary judgment) that the primary election law is “facially

unconstitutional.” Doc. 4 at 3; Doc. 4-1 at 9-11, 30. The Party emphasizes the

standard for facial unconstitutionality at some length. Id. at 9-11. Given the

Party’s apparently intentional choice to limit its claim to a facial challenge only,

the Party’s filings should not be read to raise an as-applied challenge. And as

explained above, the facial challenge is wholly misplaced. This Court should

therefore deny the Party’s motions, and grant Defendant’s counter-motion.

Even ~f this Court reads the complaint as raising an as-applied challenge, that

challenge also fails. The Party must demonstrate the unconstitutionality of the

open primary. Wash. State Republican Party v. Wash. State Grange, 676 F.3d 784,

791 n.4 (9th Cir. 2012) cert. denied, 133 S. Ct. 110 (2012) (“Under the First

Amendment, plaintiffs bear the initial burden of demonstrating that a challenged

election regulation severely burdens their First Amendment rights.”). Plaintiff

bears this ultimate burden of persuasion.



The critical inquiry is whether the Party’s associational rights have been

“severely” burdened or only subject to a “lesser” burden. See Clingman, 544 U.s.

at 592 (“[N]ot every electoral law that burdens associational rights is subject to

strict scrutiny. Instead,. . . strict scrutiny is only appropriate if the burden is

severe.”) (citations omitted). The Party’s filings depend upon its arguments that its

associational rights have been severely burdened. Doc. 1; Doc. 4-1.

Yet the Party reaches this conclusion not on facts showing that its

associational rights have actually been burdened, but on suppositions and

assumptions about how the electorate behaves and what individual voters’

motivations might be. Doc. 1 at 10-14; Doc. 4-1 at 15-16. The case law shows

that these factual assertions cannot be assumed; they must be proven. In other

words, in order to establish that the Party’s associational rights have been

“severely burdenedj,” the Party must show that such burdens have occurred, not

just restate assumptions withoutproof See, e.g., Tinimons v. Twin Cities Area

New Party, 520 U.S. 351, 361 (1997) (stating, in rejecting associational claim:

“{t]his is a predictive judgment which is by no means self-evident.”); Wash. State

Republican Party, 676 F.3d at 791 n.4 (“Under the First Amendment, plaintiffs

bear the initial burden of demonstrating that a challenged election regulation

severely burdens their First Amendment rights.”); Bayless, 351 F.3d at 1282 (Jones

“treated the risk that nonparty members will skew either primary results or



candidates’ positions as afactual issue, with the plaintiffs having the burden of

establishing that risk[.]”) (emphasis added). As Plaintiff, the Party must prove that

the burden on its associational rights is “severe.”

The Party has wholly failed to meet that burden here. It offers no facts to

support its assumptions and suppositions about how primary voters behave. The

only fact it offers is restating the Party’s preference that the primary be closed, as

reflected in the Party’s constitution. Doc. 5 at 3. This fact does nothing to

demonstrate that the open primary actually burdens the Party’s associational rights,

much less establish that that burden is severe. Because the ultimate burden for this

proposition rests with the Party, as plaintiff, their failure to provide any facts

dooms their motion for summary judgment from the start.

One unique quality of associational-rights challenges further highlights the

need for proof. In challenges to primary systems, the political party’s own

preferences for how the primary is run matter a great deal. In Tashjian v.

Republican Party of Connecticut, 479 U.S. 208 (1986), the closed primary was

unconstitutional as applied to the Republican Party, when the party wanted to open

its primary to independent voters. Had the Republican Party wanted the primary to

be closed (as the Democratic Party does here), then it would have been

constitutional as applied to it. But a political party’s own preferences can change

over time. A closed primary might be unquestionably constitutional as applied to a

l• 1Civil No. CV 13-00301 JMS/KSC


political party on Tuesday, yet be subject to a constitutional challenge on

Wednesday, after the party has changed its preference for how the primary should

be conducted.

Here, the Party here seeks to strike down a longstanding election law without

any actual facts showing a severe burden on its associational rights. In sum,

therefore, the Party’s assertion that the open primary is unconstitutional

amounts to nothing more than a statement of its own preferences. Striking down

a State election law based on nothing more than a litigant’s stated preferences

would be anomalous indeed. Yet that is exactly what the Party seeks to do now.

The total lack of factual proof is fatal to their motion for summary judgment, and

Defendant’s counter-motion should be granted.4

C. The Party Fails to Demonstrate that Its Associational Rights AreSeverely Burdened Because Primary Voters Do Affiliate with the Party

The Party’s entire case depends upon its assertion that its associational rights

have been “severely” burdened. Docs 1, 4-1. Yet the Party offers no facts to

support that assertion. Even ~f this Court disregards the Party’s lack of factual

support, the Party still cannot prevail, because its associational rights have not been

severely burdened. The Party’s reliance on California Democratic Party v. Jones,

530 U.S. 567 (2000) is misplaced. Open primaries (where voters participate in

~ The motion for preliminary injunction would also fail, because the same inquiry

establishes that the Party has no likelihood of success on the merits.



only one primary for all offices) and blanket primaries (where voters may move

freely between the primaries of different parties for all offices) do not affect the

political parties’ associational rights in the same manner. The United States

Supreme Court highlighted this exact distinction in Jones:

[A blanket primary] is qualitatively different from a closed primary. Underthat system, even when it is made quite easy for a voter to change his partyaffiliation the day of the primary, and thus, in some sense, to “cross over,” atleast he must formally become a member of the party; and once he does so,he is limited to voting for candidates of that party.8

8 this sense, the blanket primary also may be constitutionally distinct

from the open primary, in which the voter is limited to one party’s ballot.The act of voting in the Democratic primary fairly can be described as anact ofaffiliation with the Democratic Party. The situation might bedifferent in those States with ‘blanket’ primaries—i.e., those where votersare allowed to participate in the primaries of more than one party on a singleoccasion, selecting the primary they wish to vote in with respect to eachindividual elective office. This case does not require us to determine theconstitutionality of open primaries.

Jones, 530 U.S. at 577 and n.8 (emphases added; citations, internal quotation

marks, ellipses and brackets omitted) (quoting Democratic Party of the United

States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 130 n.2 (1981) (Powell, J.,

dissenting)). The concurring opinion from Clingman makes the same critical

distinction—the voter is affiliated with the party in an open primary:

registration with a political party surely may signify an important personalcommitment, which may be accompanied by faithful voting and evenactivism beyond the polls. Butfor many voters, registration servesprincipally as a mandatory (and perhaps even ministerial) prerequisite toparticipation in the party’s primaries. The act of casting a ballot in a givenprimary may, for both the voter and the party, constitute a form of



association that is at least as important as the act of registering. The act ofvoting in the Democratic primary fairly can be described as an act ofaffiliation with the Democratic Party. The fact that voting is episodic doesnotj, in my judgment, undermine its associational significance; it simplyreflects the special character of the electoralprocess, which allows citizensto join together at regular intervals to shape government through thechoice ofpublic officials.

Clingman v. Beaver, 544 U.S. 581, 600-01 (2005) (O’Connor, J., concurring)

(emphasis added; citation, internal quotation marks and brackets omitted) (quoting

same language from La Follette). The defining attribute of an open primary is that

the voter participates in one—and only one—party primary. Jones and Clingman

show that this critical distinction is clearly one of constitutional significance.5

This is why the Party’s reliance on Jones is misplaced. Its arguments

assume that the blanket primary struck down in Jones and the open primary at

issue here are identical in all constitutionally-relevant respects. But this logic is

fundamentally flawed: voters do affiliate with one party and one party only in an

open primary, and Jones itself noted this distinction. Haw. Const. Art. II § 4; HRS

~ La Follette did not hold differently. In the Court’s view, the constitutionality of

an open primary was not the question posed in that case. The question was“whether, once Wisconsin has opened its Democratic Presidential preferenceprimary to voters who do not publicly declare their party affiliation, it may thenbind the National Party to honor the binding primary results, even though thoseresults were reached in a manner contrary to National Party rules.” La Follette, 450U.S. at 120. The Court’s opinion supports the constitutionality of the openprimary: “Concluding that the open primary serves compelling state interest byencouraging voter participation, the court held the state open primaryconstitutionally valid. Upon this issue, the Wisconsin Supreme Court may well becorrect. In any event there is no need to question its conclusion here.” Id at 102-21 (emphasis added).



§ 12-3 1; Jones, 530 U.s. at 577 n.8. In an open primary, the voter’s act of

choosing a party ballot simultaneously relinquishes the right to vote in any other

party’s primary for any office. Choosing which party primary to participate in is

therefore an act of affiliation that a blanket primary lacks. In a blanket primary,

voters move freely about the ballot, and may vote for nominees of any race from

any party. No relinquishment occurs, and no affiliation with any political party can

have formed with any voter in a blanket primary. Jones, 530 U.S. at 581

(describing blanket primary voters as “wholly unaffiliated with the party.”).

In an open primary, voters choose a party as their own the day of the

primary. This affiliation is at the most important time, just before they cast their

vote. Choosing a politicalparty as your own for purposes of casting a vote is, for

many voters, the only time that matters. See Clingman, 544 U.S. at 600-01

(O’Connor, J., concurring) (“for many voters, registration serves principally as a

mandatory (and perhaps even ministerial) prerequisite to participation in the

party’s primaries. The act of casting a ballot in a given primary may, for both the

voter and the party, constitute a form of association that is at least as important as

the act of registering.”); La Follette 450 U.S. at 130 n.2 (Powell, I., dissenting)

(“Limiting voters to only one party’s ballot discourages voters from voting on a

ballot of a party other than their own, because in order to do so they would have to

sacrifice the opportunity to participate in their own party’s selection process.”).

15Civil No. CV 13-00301 JIvIS/KSC


This form of association is exactly the distinction adopted in Jones. 530 U.S. at

577 n.8.

The primary is an election. Polling places are protected to ensure the

sanctity of the vote. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding

ban on campaigning within 100 feet of a polling place). The ballot is not a forum

for political expression. See, e.g., Timmons v. Twin Cities Area New Party, 520

U.S. 351, 363 (1997) (“Ballots serve primarily to elect candidates, not as forums

for political expression.”). In other words, a primary election is all about the

votes. This highlights the significance of the affiliation that takes place on election

day in an open primary. A voter chooses which party primary to participate in, that

is, the voter affiliates with that party during the moments when it matters most:

when casting her or his vote. The voter is limited to one party. Hawaii law makes

this limitation explicit: “A voter shall be entitled to vote only for candidates of one

party or only for nonpartisan candidates. If the primary or special primary ballot is

marked contrary to this paragraph, the ballot shall not be counted.” HRS § 12-31.

It is this form of exclusive affiliation that the blanket primary in Jones lacks.

Because the voters who select and vote in the Democratic primary are

affiliated with the Party, the Party’s claim that the open primary “severely”

burdens its associational rights fall flat. It is a fact that voters in the Democratic

party affiliate with the Party, because it is required by law that they do so in order



for their vote to be counted. HRS § 12-3 1; Nago Decl.; Ex. A. No one can have

actually voted in more than one party’s primary; the law makes this an

impossibility. Id The voter’s act of affiliation is not an empty one. An open-

primary voter must forgo voting in other parties’ primaries—no matter what other

races might be offered there. j~

Hawaii’s very recent history demonstrates that voting itself is an act of

affiliation that ties a primary voter to the Party. Hawaii’s primary election is open,

but the choice of presidential electors is not. Presidential electors are chosen by

convention, which are limited to the members of each party. HRS § 14-21 (parties

to hold conventions pursuant to its own rules); Doc. 13-1. These conventions are

exempt from HRS chapter 12, which governs the primary. HRS § 12-1.

Around 2005, the Democratic Party of Hawaii had around 20,000 registered

members. Doc. 13-1 at 3. This level of membership was consistent—in

approximate ranges—for some time before that. Id. In 2008, the Party’s

membership skyrocketed. The membership tripled in a single year, to around

65,000 members. Id. at 3. The well-known events of 2008 caused this dramatic

change: Hillary Clinton and Barack Obama were competing for the Democratic

nomination for the presidency.

Since only registered Party members could cast their vote in that contest, the

Party’s membership jumped in a very striking manner. The most ready conclusion



one can draw from this data is that it is the access to the vote that matters for

purposes of affiliation with the Party. For these 45,000 voters, registering for the

Party was simply the step that stood between the voter and the ballot. See

Clingman, 544 U.S. at 600-01 (O’Connor, J., concurring) (“for many voters,

registration serves principally as a mandatory (and perhaps even ministerial)

prerequisite to participation in the party ‘s primaries. The act of casting a ballot in

a given primary may, for both the voter and the party, constitute a form of

association that is at least as important as the act of registering.”) (emphasis

added).

This recent data shows that approximately two-thirds of the Party’s current

membership joined in 2008, apparently in direct response to the Clinton-Obama

race. Doc. 13-1 at 3. To some extent, therefore, the Party’s arguments now are

inconsistent with its very recent history. Only five years ago, approximately

45,000 of the Party’s current members were not registered with the Party. These

individuals apparently registered with the Party because it was a “prerequisite” to

casting their vote in a particularly high-profile race. Clingman, 544 U.S. at 600-01

(O’Connor, I., concurring). The Party’s arguments now suggest that—because

they had not registered with the Party earlier—these same 45,000 voters did not

sufficiently affiliate the Party before 2008, say for purposes of the 2006 primary.

Under the Party’s arguments now, these voters could have been “adherents of



opposing parties” or “indifferent to the beliefs” of the Party. Doc. 4-1 at 15. Yet,

given the Party’s dramatic increase in membership in 2008, isn’t it more likely that

in 2006, these voters would have identified themselves politically as Democrats,

and their choice to formally register with the Party during 2008 confirms this?

The very recent facts therefore show that choosing the Democratic Party as

your own on the day of the primary shows exactly the kind of affiliation the

Supreme Court was contemplating when it distinguished open primaries from

blanket primaries in Jones. Jones, 530 U.S. at 577 n.8. After all, the primary is an

election. Choosing the party for purposes of the primary is the day that affiliation

matters most: when the vote is at stake.

The Party’s argument that the voters who participate in the open Democratic

primary are “unaffiliated” with the Party therefore falls flat. Open primary voters

are affiliated with the Party, under the logic of Jones and the Clingman

concurrence. And the facts show that for at least two-thirds of the Party’s current

membership, registering with the Party was simply a way of getting access to the

ballot, an act of affiliation which is not necessarily any greater than the affiliation

that takes place when choosing the party’s primary during the open primary. See

Clingman, 544 U.S. at 601 (O’Connor, J., concurring) (“The act of casting a ballot

in a given primary may, for both the voter and the party, constitute a form of

association that is at least as important as the act of registering.”) (emphasis

19Civil No. CV 13-00301 JMSIKSC


added). Access to the ballot itself was the apparent motivator for a substantial

majority of the Party’s current membership. This facts supports the conclusion that

it is the vote—the affiliation in the voting booth—that matters most.

Given this conclusion, the Party’s argument regarding their preferred style of

affiliation for primary voters becomes a complaint not about the existence of

affiliation, but about the method of affiliation. Voters are affiliated with a political

party when they choose to participate in the party’s primary. Jones, 530 U.s. at

577 n.8 (“The act of voting in the Democratic primary fairly can be described as an

act of affiliation with the Democratic party[.]”) (brackets, citation, and internal

quotation marks omitted). But the Party wants these voters to affiliate with the

Party in a different way. This is insufficient to show that the burden on the Party’s

associational rights is “severe.”6

By itself, the Party’s preference on how affiliation with the Party is

established is not enough to demonstrate a severe burden on associational rights.

~ Clingman, 544 U.5. at 590 (discussing ease of affiliation with the party)

(plurality op.). As explained above, the Party argues and assumes that the burden

on its associational rights is severe, but it does not prove this conclusion withfacts.

6 Importantly, the Fourth Circuit did not address this issue in Miller v. Brown, 503

F.3d 360 (4th Cir. 2007). In fact, the court explicitly did not decide the issue ofvoter affiliation through the open primary process. Id. at 366 n.6. Miller all butignored the distinction made in Jones.



Under the distinction made in Jones, open primary voters are affiliated with the

Party by voting in only one party’s primary. Jones, 530 U.S. at 577 n.8.

The Party therefore cannot show that the burden on its associational rights is

severe. The Party’s motions should be denied, and Defendant’s counter-motion

should be granted.

D. The State’s Interests in the Open PrimaryOutweigh the Party’s Associational Rights

Under Supreme Court precedent, if the Party’s associational rights are only

subject to a “lesser” burden, “a State’s important regulatory interests will usually

be enough to justify, reasonable nondiscriminatory restrictions.” Timmons, 520

U.S. at 358 (internal quotation marks and citations omitted). Because the burden

on the Party’s associational rights is not severe, this test applies here. As explained

below, however, even if strict scrutiny applies, the governmental interests are

compelling and can meet that test.7 The open primary is constitutional under either

standard.

~ “[Bjecause a government has such a compelling interest in securing the right to

vote freely and effectively, this Court never has held a State to the burden ofdemonstrating empirically the objective effects on political stability that areproduced by the voting regulation in question.” Burson v. Freeman, 504 U.S. 191,208 (1992) (citation, internal quotation marks and brackets omitted).



1. The Open Primary Enhances the Democratic ProcessBy Removing Barriers to Voter Participation

The open primary encourages voter participation by removing barriers to

voter participation. As explained above, registering for a political party is, for

many voters, just a step between them and the ballot. Clingman, 544 U.s. at 600-

01. The more steps inserted between the voter and the ballot, the harder it becomes

for people to vote. Opening the primary counters this factor by making it easier for

people to vote, and thereby removing baniers to voter participation. See Comm. of

the Whole Report No. 16, in 2 Proceedings of the 1978 Constitutional Convention,

at 1025 (1980).

Keeping democracy in the hands of more of the people is certainly a

compelling interest. A State may require the parties to choose their candidates by

primary election, as opposed to a choice made by party bosses:

the direct primary [is] a vital weapon. . . to make government accessible tothe superior disinterestedness and honesty of the average citizen. Then, withthe power of the bosses broken or crippled, it would be possible to check theincursions of the interests upon the welfare of the people and realize acleaner, more efficient government. We can imagine no governmentinterest more compelling.

Lightfoot v. Eu, 964 F.2d 865, 872 (9th Cir. 1992) (emphasis added; citation and

internal quotation marks omitted). “We therefore hold that the State’s interest in

enhancing the democratic character of the election process overrides whatever



interest the Party has in designing its own rules for nominating candidates.” IcL

at 873 (emphasis added).

“Enhancing the democratic character of the election process” is exactly what

the open primary does here. There is no interest more important: democracy itself.

2. The Privacy Afforded by the Open Primary Preserves the Integrity ofthe Democratic Process By Protecting Voters from Coercion

The State of Hawaii has a compelling interest in maintaining voters’ privacy.

The right to privacy is expressly protected in the Hawaii constitution, for voting

purposes and in general. Haw. Const. Art. I § 6, Art. II § 4. The history behind the

constitutional provision at issue here shows that priv4cy was sought not just for

itself, but because privacy supports other compelling interests. Keeping party

affiliation private protects voters from coercion. This interest supports the

constitutionality of the open primary.

The history of the 1978 constitutional convention (which amended Haw.

Const. Art. II § 4 into its current form) shows that keeping party affiliation private

was needed to protect voters and encourage their participation. Several delegates

expounded on the importance of private affiliation:

• “a large percentage of the electorate in Hawaii continues to stay away from the

polls because of discontent over the closed primary system. Many people feel

this is an invasion of their privacy, that it is repugnant to our democratic



process. . . .“ 2 Proceedings of the Constitutional Convention ofHawai ‘i of

1978, at 744 (1980) (Delegate Campbell).

• “An open primary election operates to protect a person’s voting and privacy

rights... [a]s the system operates now [then-closed primary], a voter must

declare to a total stranger his party preference at the time of registration and at

the primary voting.” Id. at 766-67 (Delegate Odanaka).

• “[I]n earlier days in this State,. . . if you lived in a small town, especially a

sugar mill town, and were a supervisor, and you went in and asked for the

wrong ballot or you were a rank-and-file member and you went in and asked

for the wrong ballot — that would be a stigma attached to you in your daily

lives.” Id. at 768 (Delegate Blean).

These concerns are not foreign to American elections. History shows how

easily the voting process can be subject to coercion. See, e.g., Burson, 504 U.S. at

200-06 (detailing history showing why secret ballots are necessary) (plurality op.).

Mandating that party affiliation be public may have that effect, by subjecting

voters to pressure to register with the “right” party or participate in the “right”

primary. The State need not stand idly by: “A State indisputably has a compelling

interest in preserving the integrity of its election process.” Eu v. San Francisco

Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (emphasis added). A

State also “has a compelling interest in protecting voters from confusion and undue

24Civil No. CV 13-0030 1 JMSIKSC


influence.” Burson, 504 U.S. at 199 (plurality op.); id. at 214 (“under the statute

the State acts to protect the integrity of the polling place where citizens exercise

the right to vote.”) (Kennedy, J., concurring). The open primary system removes

these potentially coercive influences by allowing voters to affiliate with one party

in the privacy of the voting booth. A closed primary, by contrast, would require

election officials (and presumably others, like the Party itself) to know each voter’s

party choice.

The State’s interests in encouraging voter participation and protecting the

integrity of the election by maintaining voter privacy are both compelling under

the cases explained above. Opening the primary was intended to do just that, by

protecting voters from pressure, embarrassment, or outright intimidation. These

interests were specifically considered in support of the open primary. The open

primary protects voters’ privacy not just for its own sake, but because privacy

supports other compelling interests.8 The open primary is constitutional.

3. The Open Primary Supports a Vibrant Multi-Party System

The State of Hawaii also has a strong interest in preserving the stability of its

political system through maintaining a strong multi-party system. “Maintaining a

8 Jones discusses the privacy of voters’ party affiliation without addressing how

either of these specific interests (encouraging voter participation, protecting againstcoercion) tie into privacy. Jones, 530 U.S. at 584-85. This is important, becauseJones determined that protecting voters’ privacy was not compelling only “in thecircumstances of this case,” ~ as a general proposition. Id. at 584.



stable political system is, unquestionably, a compelling state interest.” Eu, 489

U.S. at 226 (citation omitted). A strong multi-party system is good for democracy:

it encourages the open exchange of ideas and subjects public policy debates to

competing viewpoints. Because a vibrant multi-party system is crucial for a vital,

functioning democracy, Hawaii has a compelling interest in preserving this system.

See Timmons, 520 U.S. at 367 (“The Constitution permits the Minnesota

Legislature to decide that political stability is best served through a healthy two-

party system. The stabilizing effects of such a two-party system are obvious.

There can be little doubt that the emergence of a strong and stable two-party

system in this country has contributed enormously to sound and effective

government. Broad-based political parties supply an essential coherence and

flexibility to the American political scene.”) (internal quotation marks and citations

omitted); Clingman, 544 U.S. at 593-94 (“preserv[ing] political parties as viable

and identifiable interest groups” is an important regulatory interest.”) (brackets,

quotation marks, and citation omitted).

Hawaii’s electorate votes heavily Democratic. Nago Decl. Closing the

Democratic primary—as the Party requests here—could all but eliminate

competition from the other parties. This would happen because of the “safe

district” phenomenon: in many prominent races, the Democratic primary is where

the real contest is. The winner of this primary will, in all likelihood, win the



general election. If voters must formally register with the Democratic Party in

order to vote in the election that will decide their representation, the continued

viability of the other parties may be threatened.9 This is bad for democracy

because public policy debates are best conducted when competing viewpoints are

tested against each other. Competing political parties benefit democracy in the

same way that the adversarial process benefits this Court. Competing points of

view are tested and judged, and the decision-maker is better equipped when both

(or multiple) sides of a debate participate, not just one.

The State’s interest in the open primary is meant “to prevent the disruption

of the political parties from without” by supporting a multi-party system. Tashjian,

479 U.S. at 224. A vibrant multi-party system is necessary to foster public debate

and to preserve the stability of our political branches. This interest serves to

uphold the open primary.

The State has three distinct interests supporting the open primary. As

explained above, the Party has not demonstrated that the burden on its

associational rights is severe. Consequently strict scrutiny does not apply. Even if

~ Note that this argument does not depend on the functional disenfranchisement of

individual “safe district” minority-party voters, as was rejected in Jones. Jones,530 U.S. at 583-84. This argument instead turns on the larger societal need for avibrant multi-party system, and whether closing the dominant party’s primary willundermine that critical interest.



this Court does apply strict scrutiny, these interests can meet that test.1° Hawaii’s

open primary is constitutional.

E. The Party Cannot Meet the Other Three Prongs for Preliminaryor Permanent Injunctive Relief

“A plaintiff seeking a preliminary injunction must establish that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter, 555 U.s. at 20. The same prongs,

with actual success, govern permanent injunctions as well. Id. at 32.

The Party’s lack of likely success on the merits is explained above. The

Party also cannot meet the other three prongs. The Party cannot show irreparable

harm because voters in the open primary do affiliate with the Party exclusively,

and the Party’s associational rights are not severely burdened. Because it can show

no likelihood of success on the merits, the Party has also “failed to establish that

10 Defendant does not make any arguments regarding the Party’s ability to spend

money in favor of its candidates. In the interests of completeness, however,Defendant addresses this issue because several of the Party’s statements areinaccurate. Doc. 4-1 at 28. First, HRS § 11-204 was repealed in 2010. 2010 Haw.Sess. L. Act 211. Second, the Party’s expenditures on behalf of candidates will becounted as contributions only if the expenditures are coordinated. HRS § 11-363.Third, tothe extent that the Party claims it must be allowed to spend its moneybecause others are spending more on the election, this argument has been rejectedby the United States Supreme Court. Citizens United v. Fed. Election Comm’n,558 U.S. 310, 363-64 (2010) (overruling Austin v. Michigan Chamber ofCommerce, 494 U.S. 652 (1990) and rejecting the “anti-distortion” rationale.)



irreparable harm will flow from” the denial of injunctive relief. Hale v. Dep’t of

Energy, 806 F.2d 910, 918 (9th Cir. 1986).

The balance of equities does not tip in the Party’s favor either. The Party

asks this Court to upend a central component of Hawaii’s election laws yet

provides no facts whatsoever to support its claim. Instead the Party relies on

assumptions and suppositions; these are insufficient to conclude that the equities

tip in its favor. Striking down the open primary would make it more difficult for

people to vote, which is decidedly not in the public interest. Nor is weakening the

multi-party system, or undermining democracy by failing to protect voters from

intimidation or coercion in the public interest. The Court should also consider the

confusion that would result from such a ruling, which could result in the

Democratic primary being closed, but the other primaries remaining open. This is

a democracy, and it is not in the public interest to create any confusion about

voting or access to the poils. See Lightfoot, 964 F.2d at 871 (“the State has a

compelling interest in minimizing voter confusion.”)

The Party cannot meet any of the prongs of injunctive relief. The motions

should be denied.

F. Even if This Court Strikes Down the Open Primary, Restructuring theElection Laws is the Sole Prerogative of the Hawaii State Legislature

The Party moves for partial summary judgment, seeking subsequent

proceedings in which Defendant would “devise, and submit to the Court and



Plaintiff, regulations and procedures that will permit the [Party] to participate in

future Hawaii elections.” Doc. 4 at 5. Even if this Court strikes down the open

primary, this remedy is completely inappropriate. If this Court rules that the open

primary is unconstitutional, the Court’s role in this case would necessarily end.

The decision of what to do next—what law to enact in the open primary’s place—

must fall to the Hawaii State Legislature. Haw. Const. Art. II § 4 (“The legislature

shall provide for the registration of voters and for absentee voting and shall

prescribe the methods of voting at all elections.”); Art. II § 8 (“Special and primary

elections may be held as provided by law[.]”).

The Party seriously misconstrues the law governing the open primary. The

open primary is not governed by “regulations and procedures.” Doc. 4 at 4. The

open primary is required under the Hawaii constitution and is implemented by

Hawaii statute. Haw. Const. Art. II § 4; HRS § 12-31. Other than this Court

enjoining the open primary, any change to this system must to be statutory.” It is

not within the Defendant Nago’s power to direct the Hawaii State Legislature on

what statute to enact should this situation arise. Nor would it be proper for this

“Defendant assumes that if this Court strikes down the open primary, the Courtwould enjoin the relevant portions of both Haw. Const. Art. II § 4 and HRS § 12-31. If the Court struck down just HRS § 12-31, the Legislature would remainsubject to the constitutional provision. This would severely hamper any attempt toenact a new statute governing the primary election in response to the Court’sruling, because any amendment to the State Constitution could not be made untilthe next general election. Haw. Const. Art. XVII § 3.



Court to short-circuit the political processes inherent in a State government’s

choosing one primary system over another. This is a matter of judicial restraint

and respect for the State authority that exists in our federal system.

If this Court strikes down the open primary, the Hawaii State Legislature

will decide between several constitutional alternatives.’2 The Democratic Party’s

request that it play a determinative role in this process—using the remedy it seeks

from this Court—is completely misplaced. If the open primary is struck down, the

decision of what form of primary should be used instead is not the Party’s to

make.’3 See e.g., Jones, 530 U.S. at 572 (“States have a major role to play in

structuring and monitoring the election process, including primaries. We have

considered it “too plain for argument,” for example, that a State may require

12 For example, the State might enact a “top two” nonpartisan primary. Chamness

v. Bowen, 722 F.3d 1110 (9th Cir. 2013); Wash. State Republican Party v. Wash.State Grange, 676 F.3d 784, 787 (9th Cir. 2012), cert. denied, 133 5. Ct. 110(2012). See also Jones, 530 U.S. at 585 (describing nonpartisan primary). Or theState might enact a “party choice” primary, where each party chooses for itselfwhether to allow independents or the members of other parties, or both. Or theState might enact a semi-closed primary, with all parties being prohibited fromaccepting voters registered with other parties. Clingman. Or the State mightreplace the partisan primary with party-funded conventions or caucuses, sinceprimary elections are optional under state law. Haw. Const. Art. II § 8. Or theState might consider other alternatives altogether. (This list is not intended to beexhaustive, nor to indicate any commitment to any of these options.)13 Naturally, the Democratic Party could participate in the public debate about what

primary system the State of Hawaii should adopt if this Court rules that the openprimary is unconstitutional. The same would be true for any other political party,interest group, individual voters, or other stakeholders. But the Party is not entitledto use this litigation to increase its role beyond that.



parties to use the primary format for selecting their nominees, in order to assure

that intraparty competition is resolved in a democratic fashion.”) (citations

omitted). See also Lightfoot, 964 F.2d at 873 (“the State’s interest in enhancing

the democratic character of the election process overrides whatever interest the

Party has in designing its own rules for nominating candidates.”)

Furthermore, the decision of how to restructure the statutes governing the

primary—should that prove necessary—is not a particularly easy one. For

example, the session law enacted that implemented the open primary amended nine

separate sections of existing statutory law. 1979 Haw. Sess. L. Act 139; Ex. D.

Legislation to replace the open primary would probably require at least that many

specific statutory amendments. Only the State Legislature can take on that task.

The problems inherent in the Party’s invitation for this Court to rewrite

Hawaii’s election laws are compounded by the Party’s focus on “public affiliation”

through the voter registration process. Doc. 4-1 at 4; Doc. 5 at 3. Hawaii’s voter

registration laws have no requirement for voters to state their party choice. HRS §

11-15. The Party apparently prefers that only registered members and publicly

affiliated voters be allowed to participate in the primary. Doc. 4-1 at 14. This

would require that the voter registration laws—which are not even the subject of

this suit—also be amended.



To the extent the Party’s suggested remedy includes changes to the voter

registration laws, this also raises a concern about the lack of necessary and

indispensable parties. Fed. R. Civ. P. 19. Defendant Nago is not responsible for

the voter registration laws. Nago Deci. By law, the counties operate the voter

registration system and absentee voting. HRS § 11-11. This is authority directly

assigned to the counties by statute, not authority delegated by Defendant Nago.

j~; Nago Dccl. None of the counties are named parties to this suit. If this Court

entertained the Party’s suggestion to rewrite the voter registration laws, the Court

would have to do so without the presence of the government agencies that

implement those laws. This is another independent reason why this Court should

not accept the Party’s invitation to rewrite the State’s election laws.

Finally, it would be decidedly inappropriate for this Court to attempt to

refashion Hawaii’s election laws itself without at least giving the State Legislature

an opportunity to do so. Reynolds v. Sims, 377 U.S. 533, 586 (1964) (‘~judicial

relief becomes appropriate only when a legislature fails to reapportion according

to federal constitutional requisites in a timely fashion after having had an adequate

opportunity to do so.”) (emphasis added).’4 See also Wise v. Lipscomb, 437 U.S.

14 The choice between different styles of primary elections is an inherently

legislative matter. The Hawaii State Constitution expressly directs the Legislatureto determine how voting is conducted in this State: “The legislature shall providefor the registration of voters and for absentee voting and shall prescribe the methodof voting at all elections.” Haw. Const. Art. II § 4. Primary electiOns are also



535, 540 (1978) (court must “afford a reasonable opportunity for the legislature to

meet constitutional requirements by adopting a substitute measure rather than for

the federal court to devise and order into effect its own plan.”).

The Party has not even alleged that the State Legislature would fail to amend

the laws governing the primary, should it prove necessary. Yet the Party supposes

that it should be given a large hand in rewriting Hawaii’s election laws in the first

instance. Doc. 4 at 5. This is wrong, for the same reasons that short-circuiting the

political processes regarding the laws governing the primary election would also be

wrong: the decision is not the Party’s to make.

The open primary is constitutional for all the reasons explained above. But

if this Court rules that the open primary is unconstitutional, the most appropriate

remedy would be to enter a permanent injunction enjoining the open primary for

the Democratic Party only, close the case, and allow the political processes to play

out after that. The Party assumes that this litigation will allow it to circumvent the

Hawaii State Legislature’s authority over the laws governing the State’s elections.

This conclusion is wholly misplaced and should be categorically rejected.

CONCLUSION

The Party’s contention that its associational rights have been severely

burdened is based on assumptions, not facts. The facial challenge fails because the

expressly subject to the Legislature’s authority: “Special and primary electionsmay be held as provided by law{.]” Haw. Const. Art. II § 8 (emphasis added).



open primary plainly has some constitutional applications. The as-applied

challenge fails on the nonexistent factual record. And the Party has failed to show

that the burden on its associational rights is severe, because voters in an open

primary do affiliate with the party. Both of the Party’s motions must therefore be

denied, and the Defendant’s counter-motion for summary judgment should be

granted. Finally, even if this Court were to rule that the open primary is

unconstitutional, refashioning the primary as a result of that ruling would be the

sole prerogative of the Hawaii State Legislature.


Respectfully submitted,

s/ Deirdre Marie-IhaDeirdre Marie-thaMarissa H.I. Luning

Deputy Attorneys GeneralAttorneys for Defendant Scott Nago,

Chief Election Officer



iN THE UNITED STATES DISTRICT COURT



Plaintiff,

vs.


Defendant.

CERTIFICATE OF COMPLIANCE

I certify that Defendant’s memorandum complies with the word count

limitations of Local Rules of Practice for the United States District Court for the

District of Hawaii Rules 7.5(b) and 7.5(e). The brief is computer generated in 14-

point Times New Roman font and contains 8,992 words (using the word

processing system’s word count).


Is! Deircire Marie-IhaDEIRDRE MARIE-IHAMARISSA H. I. LUNING

Deputy Attorneys GeneralCounsel for Defendant





Plaintiff,

vs.


Defendant.

CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2013, I electronically filed the

foregoing document with the Clerk of the Court for the United States District Court

for the District of Hawaii by using the CM/ECF system.

I certify that all participants are registered CM/ECF users and that service

will be accomplished by the appellate CM/ECF system.


/s/ Deirdre Marie-IhaDEIRDRE MARIE-IHAMARISSA H. I. LUNING

Deputy Attorneys GeneralCounsel for Defendant


david m.louie 2162 attorney general ofhawai’i deirdre marie-iha 7923 marissa … ·...

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